Dubbed “The Lone Ranger” by his clerks for his early conservative dissents, William H. Rehnquist provided 33 years distinguished service on the U.S. Supreme Court and saw his philosophy gain ascendancy in an era where the court was often marked by ideological schisms.
As chief justice, he earned high marks for his administration, nothing to take for granted in such turbulent times. Justice John Paul Stevens, a frequent adversary on contested decisions, praised Rehnquist rightly for “efficiency, good humor and absolute impartiality” in running the court.
Rehnquist’s death Saturday of thyroid cancer at the age of 80 ends one of the longest runs in the history of the U.S. Supreme Court. And it is sure to reopen debate over the kind of “judicial activism” Rehnquist came to exemplify at least as much as the liberal justices he supplanted.
Only four justices served longer than Rehnquist: William O. Douglas, 36 years; Hugo Black, Stephen Field and Chief Justice John Marshall, 34 years each. William Brennan Jr, Joseph Story and John Marshall Harlan matched Rehnquist’s 33-year tenure.
Rehnquist succeeded Harlan in 1971, appointed by President Richard Nixon. At first Rehnquist was often a dissenter in a court dominated by the legacy of Earl Warren, especially as embodied in the influential William Brennan. By the time of his death, Rehnquist was the last member still on the court who voted on Roe v. Wade, the 1973 decision legalizing abortion.
A new majority
Rehnquist was elevated to chief justice by President Ronald Reagan in 1985 to replace the retiring Warren Burger. In addition, Reagan sent him judicial allies, nominating Republicans Sandra Day O’Connor, Anthony Kennedy, Antonin Scalia and Clarence Thomas. When that so-called “Rehnquist five” stuck together, they began reclaiming a role for state’s rights that had seemed imperiled by previous expansive interpretations of Congress’ power to regulate interstate commerce. In a series of 5-4 decisions, the Rehnquist court struck down federal laws intended to protect female victims of violent crime and keep guns away from schools, resolving that those issues did not involve interstate commerce and belonged at the local level. In a very different vein, the same majority held together in the 5-4 decision that brushed past states rights and settled the 2000 Florida presidential election – and therefore the presidency – to the man who will choose his successor, George W. Bush.
Rehnquist’s record certainly made clear that conservatives have at least as comprehensive an agenda of constitutional change as liberals on the old Warren Court did.
Key rulings by Rehnquist’s court decided that public schools can sometimes be used for Bible classes and that Congress can force public libraries receiving federal money to use filters to block Internet smut. The court also limited the use of affirmative action in college admissions and laid out rules for suing over discrimination in the workplace. Rehnquist wrote the 5-4 decision in 2002 that said parents may use public tax money to send their children to religious schools. As a fitting finale, Rehnquist’s last opinion, in June, upheld a Ten Commandments display in Texas.
A narrow balance
But to the end, Rehnquist would also find himself of on the losing side of many 5-4 or 6-3 votes, usually because O’Connor and/or Kennedy would disagree with him. Rehnquist was in the minority as the court barred Ten Commandments displays in public schools, prohibited student-led prayer at high school football games and said gay couples cannot be prosecuted for having sex.
Rehnquist’s death provides a second vacancy on the court. The U.S. Senate was poised to begin hearings on President Bush’s nomination of John Roberts to succeed O’Connor, who has retired. We hope the hearings will be delayed briefly in respect for Rehnquist’s passing.
The president will now have the opportunity to put an even more conservative stamp on an already conservative court. The nation will be well served if the president nominates a successor who shares Rehnquist’s passion for an independent judiciary and a collegial process for balancing the nation’s diverse interests.
